Full Judgment Text
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PETITIONER:
BALIRAM ATMARAM KELAPURE
Vs.
RESPONDENT:
SMT. INDIRABAI & ORS.
DATE OF JUDGMENT: 18/04/1996
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
MUKHERJEE M.K. (J)
CITATION:
1996 AIR 2024 JT 1996 (5) 18
1996 SCALE (3)784
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Leave granted. Heard learned counsel for booth the
parties.
Second defendant is the appellant. Suit for partition,
separate possession and profits instituted by the
plaintiff_first respondent has been decreed by the
appellate Court with the following shares plaintiff 1/12,
first defendant 5/12 and second defendant 6/12. The High
Court has modified the said shares in the following manner:
plaintiff 1/12, first defendant 7/12 and second defendant
4/12. Since fils share has been reduced by the High Court,
the present has been preferred by the second defendant .
One Atmaram, who died on January 13,1971,had two wives
- Janki Bai and Rama Bai. Plaintiff Indira Bai and the 4th
defendant latya are the children by Janaki Bai. Whereas
first defendant Krishna and second defendant Baliram are the
sons through Rama Bai. Rama Bai was alive when the suit was
instituted and she was impleaded as the third defendant.
Pending the suit Rama Bai died and defendants 1 and 2 -her
sons - have been impleaded as her legal representatives.
This was done notwithstanding the plea of the first
defendant Krishna that Rama Bai has executed a will
bequeathing her entire interest in his favour aline. In
this appeal we are not concerned with the shares of the
plaintiff and defendants 1 and 2. Here again the plaintiff’s
share at 1/12 is not in dispute. The dispute really is
between defendants 1 and 2. The appellate court had
determined the shares of defendant 1 and defendant 2,
keeping aside the will relied upon the first defendant . On
the other hand, the High Court has accepted the will as true
and accordingly modified the shared of these two defendants
as 7/12 and 4/12 respectively.
In our opinion, the High Court was not justified in
modifying the shares as aforesaid . Firstly, the will said
to have been executed by Rama Bai in favour of the first
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defendant was not in issue in the suit nor in the L.R.
application and no finding with respect to its truth and
validity has been recorded. Notwithstanding the said will,
both the brothers defendants 1 and 2 were impleaded as the
L.Rs. of Rama Bai . Moreover, since the first defendant is
seeking to alter the normal rule of succession by putting
forward the said will, the burden lies upon him to establish
the truth and validity of the will.
For the above reasons, we set aside the judgment and
decree of the High Court and restore the judgment and decree
of the first Appellate Court. It is, however, made clear
that it shall be open to the first defendant to establish
the truth and validity of the said will in an appropriate
suit/proceeding in which event, it is obvious, the inter se
shares as between the present defendants 1 and 2 shall
depend the finding of competent court regarding the truth
validity of the will.
The second appeal is accordingly allowed in the above
terms. No costs.